In Depth

Marion Superior Judge Kimberly Brown’s last-minute apology and vouching from former Indiana Justice Frank Sullivan
Jr. should not be considered in her disciplinary case, the Judicial Qualifications Commission argued in a brief filed Thursday.

The JQC argues Brown’s submission to discipline in lieu of findings and Sullivan’s affidavit filed in support should be stricken as untimely
and outside the record of her 47-count disciplinary case heard last month by a panel of special masters appointed by the Indiana
Supreme Court.

“Many assertions in (Brown’s) affidavit (and Justice Sullivan’s affidavit) were known to (Brown) prior
to the evidentiary hearing but not submitted to the Masters,” the commission argued in its response to Brown’s
latest filing. “Further, a number of (Brown’s) assertions are in direct conflict with the evidence presented at
the hearing,” the JQC’s filing says.

Brown’s contrition isn’t a meaningful acceptance of responsibility, and she has continued to delay rulings, according
to the JQC filing. “The Commission submits (Brown’s) latest filing simply is too little, too late.”

The JQC is urging the special masters to recommend the Indiana Supreme Court remove Brown from the bench. Justices ordered
the case move on an expedited schedule and asked the masters to file a report by Dec. 30. Brown suggests the masters recommend
a 60-day suspension from the bench.

Brown’s 47-count disciplinary hearing before a panel of three special masters is believed to be the longest and
most extensive against a judge in the JQC’s history. She is accused of delayed releases of at least nine defendants
from the Marion County Jail – in one case for 22 days. She is also accused of a host of rule violations, including failing
to properly oversee her court, improperly supervising trials, failing to act on Court of Appeals orders, showing hostility
toward parties who came before her, and retaliating against court staff who complained, among other things.

At her hearing, Brown was represented by attorney Aaron Haith of Choate & Haith who attempted to portray the judge as
singled out for problems he argued were endemic in the Marion Superior courts.

Before the proceedings, justices alerted counsel that parties should not request continuances or extensions except in emergencies
or under extraordinary circumstances. On Nov. 25, Haith requested an extension of time to file proposed findings after the
hearing, according to the case docket, which also shows the masters granted his request Dec. 2, extending the deadline to
noon that same day. Proposed findings were not filed.

Subsequently, Bingham Greenebaum Doll LLP partner Karl Mulvaney appeared on Brown’s behalf and filed the submission
to discipline in lieu of findings that also contained Sullivan’s affidavit, after which Haith withdrew. The brief Mulvaney
filed, and which the commission now objects to, argues elements of Brown’s defense were “ill-advised.”

Sullivan’s affidavit supplemented Brown’s latest filing. He wrote that he was disappointed and saddened by the
charges. “I believe the events surrounding the charges against Judge Brown are the result of a series of unfortunate
events and circumstances,” he said, noting he talked with Brown and counseled her on the need for professionalism and
civility. “She advises that she has taken the charges in this regard to heart and that the investigation in this case
… caused her to become a better judge.”

But the commission in response says that’s not so, and that Brown’s filing is neither a set of proposed findings
nor timely filed for the masters to consider.

“These affidavits also put the Commission at a disadvantage, as the Commission has not been given an opportunity to
cross-examine (Brown) or former Justice Sullivan on the new matters (Brown) offers.”

The commission brief says Brown “asserts that she ‘has maintained a work schedule where she is usually in the
office by 8 a.m. and usually stays until after 5 p.m. to work on her cases’ … and former Justice Sullivan offers
a personal and professional character reference.

“The Commission certainly would have cross-examined both witnesses on these matters and confronted them with evidence
which discredits these assertions,” the JQC filing says.

At Brown’s hearing, the commission set the tone, opening by admitting into evidence video from her deposition in which
the judge defiantly refuses to take an oath, claiming that because she is a judge, she is bound to the truth. The commission
brief says such behavior doesn’t instill public confidence.

Brown’s “conduct, demeanor, and tactics during the investigation and proceedings simply do little to assure the
citizens of this State that she, indeed, will do better going forward,” the JQC brief says.

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Conversations

1 Comments

Kudos to Judicial Qualifications Commission attorneys Meiring and Carusillo for a very well written and well argued brief.
(link above, do read it to understand this case) I was the subject of a 31 page brief from judicial enforcers that cited not
one legal precedent, it is great to see that attorneys working for the Ind S.Ct.
can actually brief in a professional and lawyerlike manner. The evidence to remove Judge Kimberly Brown is overwhelming ....
but who in the bar would want to litigate against her given the tactics demonstrated and documented? Will she remain an attorney
after riding so very roughshod over the very system that attorneys are called to uphold? Very scary that her conduct has been
going on for years in Marion County, seemingly with little as to review, and that she was evidently disciplined for similar
conduct while in small claims court years ago, but was still promoted and not put on probation. How sad for Indiana that political
connections and political correctness seems to have driven the judiciary for the past decades, and that too many times the
disciplinary power is either not used (Conour) or used for all the wrong reasons (Ogden). And then there is my five year bar
from the Ind bar, while yet in good standing in Kansas (I still am) and fully admitted to the Ind federal courts even after
the IBLE slammed me to the ground for my religious views. Much to be fixed in Indiana, but this story does give much hope
that the new IND S.Ct. wants to see the problems fixed, even while the old system
fights for the likes of Kimberly Brown. (An affidavit from a former S.Ct. justice
that the Commission stands prepared to shred in cross examination ... how sad for Indiana) How telling too!

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